R/CR.MA/22076/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 22076
of 2017
In CRIMINAL APPEAL NO. 1576 of 2016
KANUBHAI RAVJIBHAI PATOLIYA….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
Appearance:
MR HITESH S PADHYA, ADVOCATE for the Applicant(s) No. 1
MS MONIKA H PANCHAL, ADVOCATE for the Applicant(s) No. 1
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 19/09/2017
ORAL ORDER
1. The present application is filed under Section 389 of the
Code of Criminal Procedure, 1973 by the applicant-convict for
suspension of sentence imposed upon him vide judgment and
order dated 02.03.2016 passed by the learned Special Judge
(POCSO), Amreli, in Special (POCSO) Case No. 23 of 2014
whereby the learned Sessions Judge has convicted the
applicant for the offence punishable under Sections 376 and
506(2) of the Indian Penal Code as well as under Section 4,
5(M)(N) read with Section 6 and Section 8 of the POCSO Act,
2012 with total fine of Rs.1,77,000/- and sentenced him in the
following manner:
• Section 376 of the IPC – sentenced him to undergo ten
Page 1 of 10
HC-NIC Page 1 of 10 Created On Sun Sep 24 15:47:55 IST 2017
R/CR.MA/22076/2017 ORDER
years rigorous imprisonment with fine of Rs.50,000/-, in
default, to further undergo two years rigorous
imprisonment.
• Section 506(2) of the IPC – sentenced him to undergo
three years rigorous imprisonment with fine of Rs.2,000/-,
in default, to further undergo six months rigorous
imprisonment.
• Section 4 of the POCSO Act, 2012 – sentenced him to
undergo ten years rigorous imprisonment with fine of
Rs.50,000/-, in default, to further undergo two years
rigorous imprisonment.
• Section 5(M)(N) of the POCSO Act, 2012 – sentenced him
to undergo ten years rigorous imprisonment with fine of
Rs.50,000/-, in default, to further undergo two years
rigorous imprisonment.
• Section 8 of the POCSO Act, 2012 – sentenced him to
undergo five years rigorous imprisonment with fine of
Rs.25,000/-, in default, to further undergo one year
rigorous imprisonment.
All the sentences shall run concurrently.
2. Heard learned advocate for the applicant as well as
learned Additional Public Prosecutor for the respondent-State.
3. Learned advocate for the applicant submits that the
learned Trial Court has not properly appreciated the evidence
on record, and thereby, convicted and sentenced the applicant
for the offences as stated above. It is submitted that the
appeal preferred by the applicant is admitted by this Court, but
Page 2 of 10
HC-NIC Page 2 of 10 Created On Sun Sep 24 15:47:55 IST 2017
R/CR.MA/22076/2017 ORDER
looking to the pendency of old criminal appeals before this
Court, chances of having early final hearing of the appeal, are
very less. It is further submitted that the applicant is convicted
and sentenced for the period of ten years, out of which by now,
the applicant has undergone three years one month and
twenty-seven days. The jail conduct of the applicant is also
good. The applicant was released on temporary bail, furlough
leave as well as on parole leave but, on each occasion, on
completion of leave period, he has reported in time and has
not misused the liberty during the leave period.
4. Learned advocate for the applicant upon instructions
states that the fine amount of Rs.1,77,000/- is deposited by the
applicant before the concerned trial Court. It is submitted that
the applicant has no objection if the said fine amount of
Rs.1,77,000/- is given to the victim girl. Learned advocate for
the applicant further states that the applicant will not claim
refund of the fine amount even if, he succeeds in appeal.
5. Learned advocate for the applicant further submits that
the grandfather of the victim girl is having total 20 bighas land
and family understanding/agreement arrived at to the effect
that three sons of grandfather namely-Patoliya Ravjibhai
Khodabhai would be allotted 5 bighas each and remaining 5
Page 3 of 10
HC-NIC Page 3 of 10 Created On Sun Sep 24 15:47:55 IST 2017
R/CR.MA/22076/2017 ORDER
bighas shall remain with grandfather. Out of share of 5 bighas
of agriculture land of the applicant namely-Kanubhai Ravjibhai
Patoliya, he has agreed to part with 3 bighas of land to the
victim girl and to this effect affidavit is filed by the father of the
applicant and grandfather of the victim namely Patoliya
Ravjibhai Khodabhai. Along with the affidavit xerox-copy of
Aadhar card is also produced. The abstract of village form
no.8(a) of Village – Kotha Pipariya bearing block/survey no.42
paiki 1 and the copy of 7/12 abstract with respect to land in
question is also produced. The affidavit of other brothers
namely Hasmukhbhai Ravjibhai Patoliya and Mathurbhai
Ravjibhai Patoliya is also filed in support of the affidavit for
family understanding and for distribution of agriculture land.
The father of the applicant and grandfather of the victim girl
namely Ravjibhai Khodabhai Patoliya has filed affidavit likewise
wife of the Ravjibhai Khodabhai Patoliya namely Smt. Sakarben
Ravjibhai Patoliya grandmother of the victim girl and mother of
the applicant in view of the understanding arrived at between
the family members. The father and mother of the applicant as
well as brother of the applicant and father of the victim girl are
present before this Court. The contents of the affidavit are
explained to them and the same are admitted by the persons
who are present before this Court. The said affidavit is taken
Page 4 of 10
HC-NIC Page 4 of 10 Created On Sun Sep 24 15:47:55 IST 2017
R/CR.MA/22076/2017 ORDER
on record. It is also stated in the affidavit that the complainant
side has no objection, if the applicant is released on bail.
6. Learned advocate for the applicant further submits that
in view of the understanding arrived at between the family
members with respect to immovable property i.e agriculture
land as stated in affidavit, the further documents with regard
to the partition amongst the family members will be executed
at the later stage and the persons who have filed affidavit
before this Court will extend their full co-operation in such
execution of documents. Further all of the family members
have undertaken before this Court that they will take care of
the future of the victim girl and her further education as well
as her welfare will be properly look after by them. Not only
that, but the applicant will also co-operate other family
members so as to avoid any future untowards incident and/or
harassment to the victim girl.
7. Learned Additional Public Prosecutor appearing for the
respondent-State while opposing the present application
submits that the learned Trial Court after careful consideration
of the evidence on record, convicted and sentenced the
present applicant for the offence punishable under Section 376
of the Indian Penal Code. It is further submitted that there is
Page 5 of 10
HC-NIC Page 5 of 10 Created On Sun Sep 24 15:47:55 IST 2017
R/CR.MA/22076/2017 ORDER
sufficient evidence on record to confirm the judgment and
order passed by the learned Court below. The oral evidence
given by the prosecution witnesses and more particularly
evidence given by prosecutrix, medical evidence and other
scientific evidence are more than sufficient to uphold the
conviction and therefore, looking to the gravity of the offence,
the applicant may not be enlarged on bail.
8. Regard being had to the above submissions and
considering the material placed on record, in the facts and
circumstances of the case as also considering the contents of
the affidavit filed before this Court by the father of the
applicant which is supported by other family members
including brothers of the applicant, as also consent given by
the applicant to disburse the fine amount in favour of the
victim girl at this stage, and also considering the fact that the
complainant side and more particularly victim girl has no
objection, if the applicant is released on bail, this Court is of
the view that discretions is required to be exercised in favour
of the applicant. Hence, the present application is allowed and
the order of sentence imposed by the learned Special Judge
(POCSO), Amreli, in Special (POCSO) Case No. 23 of 2014
dated 02.03.2016 shall remain under suspension till the final
hearing and disposal of the main appeal. The applicant is
Page 6 of 10
HC-NIC Page 6 of 10 Created On Sun Sep 24 15:47:55 IST 2017
R/CR.MA/22076/2017 ORDER
ordered to be released on bail on his executing a personal bail
bond and surety in the sum of Rs.10,000/- (Rupees Ten
Thousand Only) to the satisfaction of the Trial Court on the
following terms and conditions that the applicant;
(a) shall deposit the passport, if any, with the Trial
Court, within a week
(b) shall not leave the State of Gujarat without prior
permission of this Court;
(c) shall not take undue advantage of their liberty or
abuse their liberty and shall maintain law and order;
(d) shall furnish latest and permanent address of
residence and contact number to the Investigating
Officer, and also to the Court at the time of
execution of the bond, and shall not change the
residence without prior permission of this Court;
(e) shall not enter into Amreli District till final disposal
of the appeal without prior permission of this Court;
(f) out of the fine amount of Rs.1,77,000/-, an amount
of Rs.1,70,000/- shall be invested in Fixed Deposit
in the name of victim girl in Nationalized Bank
preferably Dena Bank at Dhari, Amreli initially for a
period of five years; thereafter, the same shall be
renewed for further period as per the desire of the
victim girl. The quarterly interest accrued on the
said Fixed Deposit be given to the victim girl;
Page 7 of 10
HC-NIC Page 7 of 10 Created On Sun Sep 24 15:47:55 IST 2017
R/CR.MA/22076/2017 ORDER
(g) So far as the remaining fine amount of Rs.7,000/-
is concerned, the Trial Court shall disburse the same
to the victim girl by an Account Payee cheque after
proper verification. The permission to withdrawal of
the amounts, shall not be construed as admission of
guilt on the part of the applicant as the amount is
being deposited without prejudice to the rights and
contentions of both the sides. However, it is clarified
that the applicant will not claim refund of the said
amount in the event of his acquittal in future. If the
above conditions as volunteered by the applicant
are not complied with or fulfilled, the bail granted in
favour of the applicant shall stand automatically
cancelled without any reference to the court.
(h) In the event of committing breach of the conditions
imposed by this Court and/or in the event of any of
the family members in respect of understanding
arrived at between the them which is presented
before this Court in the form of affidavit, the victim
girl is at liberty to approach this Court.
9. It appears that the victim girl has not received any
compensation from the State Government under the Victim
Compensation Scheme. In this situation, Chairman, District
Legal Services Authority, Amreli shall take necessary steps for
providing victim compensation to the victim girl at the earliest.
The victim girl as well as father, grandfather and grandmother
of the victim girl are present before this Court today and they
Page 8 of 10
HC-NIC Page 8 of 10 Created On Sun Sep 24 15:47:55 IST 2017
R/CR.MA/22076/2017 ORDER
are instructed to remain present before the Chairman and/or
Secretary, District Legal Services Authority, Amreli on
25.09.2017. The Chairman and/or Secretary, District Legal
Services Authority shall immediately process the application
for providing victim compensation to the victim girl under the
scheme notified by the State Government under its latest
notification dated 18.07.2017. The outcome of the process
undertaken by the Chairman and/or Secretary, District Legal
Services Authority, Amreli shall be intimated to this Court on or
before 12.10.2017.
10. The father of the applicant who has filed affidavit before
this Court shall take necessary further steps for compliance of
the averments made in the affidavit dated 15.09.2017. The
Revenue Authority shall co-operate to the father of the
applicant as and when he approach for the purpose of making
proper entries in the revenue records as per the understanding
arrived at between the family members. The Revenue
Authority shall transfer the land in favour of the victim girl on
the basis of understanding arrived at between the family
members in respect of immovable property i.e agriculture land
belonging to the father of the applicant and grandfather of the
victim girl namely – Ravjibhai Khodabhai Patoliya.
Page 9 of 10
HC-NIC Page 9 of 10 Created On Sun Sep 24 15:47:55 IST 2017
R/CR.MA/22076/2017 ORDER
11. Copy of this order be sent to the Chairman, District Legal
Services Authority, Amreli as well as Revenue Authority, the
District Collector, Amreli for information and necessary action.
The outcome of efforts made for providing victim
compensation as well as necessary entries in Revenue records
be intimated to this Court.
12. The present application is stand over to 12.10.2017 for
the purpose of examining the report from the Chairman,
District Legal Services Authority as well as Revenue Authority,
Amreli.
(P.P.BHATT, J.)
NEHA
Page 10 of 10
HC-NIC Page 10 of 10 Created On Sun Sep 24 15:47:55 IST 2017
